State Farm Mut. Ins. Co. v. Lopez
| Decision Date | 09 July 1990 |
| Citation | 163 A.D.2d 390,558 N.Y.S.2d 118 |
| Parties | In the Matter of STATE FARM MUTUAL INSURANCE COMPANY, Appellant, v. Luis LOPEZ, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Scalzi & Nofi, Melville (Vincent J. Nofi, of counsel), for appellant.
Lester H. Hirsh, P.C., Lynbrook, for respondent.
Before MANGANO, P.J., and BRACKEN, RUBIN and ROSENBLATT, JJ.
MEMORANDUM BY THE COURT.
In a proceeding pursuant to CPLR article 75 to stay the arbitration of a claim for underinsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Nassau County (Molloy, J.), dated March 28, 1989, which denied the application.
ORDERED that the order is reversed, on the law, with costs, the application for a permanent stay of arbitration is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an appropriate judgment.
Pursuant to the terms of the underinsured motorist endorsement contained in the relevant insurance policy, no bodily injury coverage would be furnished to "any insured who, without [the petitioner's] written consent, settles with any person * * * who may be liable for the bodily injury". It is conceded that respondent Luis Lopez did not obtain the written permission of the petitioner before he settled with a tortfeasor who was liable to him for certain bodily injuries.
The release given by respondent Luis Lopez to this tortfeasor included a provision stating that "this release does not include * * * any underinsured motorist claim relating to the personal insurance policy of Luis Lopez". It is not clear whether this language was intended by the parties to the release to preserve Lopez's right to make an underinsured motorist claim against the petitioner, or rather to preserve the petitioner's right to bring a subrogation action against the tortfeasor. The ambiguity in the foregoing language gives rise to an issue of fact, resolution of which would require a hearing as to the exact meaning of the release (see, e.g., Clifton Steel Corp. v. County of Monroe Public Works Dept., 120 A.D.2d 924, 502 N.Y.S.2d 890; Dury v. Dunadee, 52 A.D.2d 206, 208-209, 383 N.Y.S.2d 748).
Under these circumstances, the respondent Lopez's failure to obtain the petitioner's written consent before issuing the subject release must be considered prejudicial, since the petitioner would have to litigate the scope of the release in any subrogation action brought against the tortfeasor. Since it...
To continue reading
Request your trial
-
Travelers Indem. Co., Application of
...rights, creating an ambiguity that would require Travelers to litigate the subrogation issue (see, State Farm Mut. Ins. Co. v. Lopez, 163 A.D.2d 390, 391, 558 N.Y.S.2d 118). The IAS court erred in concluding that the consequences of Mr. Levy's failure to obtain the consent of Travelers pres......
-
Didio v. Progressive Ins. Co.
...933, 934 [2d Dept. 1994]; Matter of Integon Ins. Co. v. Battaglia, 292 A.D.2d 527, supra; Matter of State Farm Mut. Ins. Co. v. Lopez, 163 A.D.2d 390 [2d Dept. 1990]; Matter of State Farm Mut. Ins. Co. v. Parker, 160 A.D.2d 882 [2d Dept. 1990]; State Farm Mut. Auto. Ins. Co. v. Taglianetti,......
-
Didio v. Progressive Ins. Co.
...933, 934 [2d Dept. 1994]; Matter of Integon Ins. Co. v. Battaglia, 292 A.D.2d 527, supra; Matter of State Farm Mut. Ins. Co. v. Lopez, 163 A.D.2d 390 [2d Dept. 1990]; Matter of State Farm Mut. Ins. Co. v. Parker, 160 A.D.2d 882 [2d Dept. 1990]; State Farm Mut. Auto. Ins. Co. v. Taglianetti,......
-
State Farm Fire & Cas. Co. v. McLaurin
...N.Y.S.2d 697 ; Matter of Integon Ins. Co. v. Battaglia, 292 A.D.2d 527, 739 N.Y.S.2d 590 ; Matter of State Farm Mut. Ins. Co. v. Lopez, 163 A.D.2d 390, 391, 558 N.Y.S.2d 118 ). It is undisputed that McLaurin and Corbin entered into the settlement of the Martinez action without State Farm's ......